United States v. KaKeitho Hughes ( 2018 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 18a0384n.06
No. 17-6345 FILED
Aug 01, 2018
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
v. ) DISTRICT OF KENTUCKY
)
KAKEITHO HUGHES, ) OPINION
)
Defendant-Appellant. )
BEFORE: ROGERS and BUSH, Circuit Judges; WATSON, District Judge.*
JOHN K. BUSH, Circuit Judge. Defendant KaKeitho Hughes appeals his conviction,
pursuant to a plea agreement, of possession of cocaine with the intent to distribute and possession
of a firearm by a convicted felon, on the basis that his trial counsel was ineffective. Generally,
claims that counsel was ineffective are best addressed on collateral review, not direct appeal, and
this case is no exception. Accordingly, we affirm Hughes’s conviction.
I
Hughes was subject to a four-count indictment. While Hughes was pleading guilty to
Counts 1, 3, and 4, the district judge asked whether Hughes understood that he was not waiving
his right to appeal his sentence, and Hughes agreed that he understood. After further negotiation,
Hughes and the government entered into a plea agreement whereby Hughes pleaded guilty to
Counts 1, 3, and 4, and the government dismissed Count 2; like many plea agreements, this one
*
The Honorable Michael H. Watson, United States District Judge for the Southern District of Ohio, sitting by
designation.
No. 17-6345, United States v. Hughes
included a clause in which Hughes waived his right to appeal his sentence on grounds other than
ineffective assistance of counsel or prosecutorial misconduct.
Hughes then moved the district court to continue sentencing because a miscommunication
with his attorney resulted in his not understanding that the plea agreement contained a partial
waiver of his right to appeal his sentence. But he later moved the court to withdraw the earlier
motion, averring that he now understood the partial waiver and wished to nevertheless go forward
with the plea agreement. Hughes was sentenced and now appeals that sentence.
II
Hughes argues that his trial counsel was constitutionally deficient for failing to inform him
of the implications of waiving his right to appeal his sentence. Hughes has not presented this claim
to a district court, however, and “[t]his court will not review an ineffective assistance of counsel
claim raised for the first time on appeal.” United States v. Swidan, 888 F.2d 1076, 1081 (6th Cir.
1989).
There is a narrow exception to this rule, only applicable when the claim rests “entirely upon
facts within the record” or presents “purely legal questions.” United States v. Soto, 794 F.3d 635,
645 (6th Cir. 2015) (quoting United States v. Angel, 355 F.3d 462, 469 (6th Cir. 2004)). This
exception does not apply. Determining whether the communications between Hughes and his trial
counsel were constitutionally infirm would require evaluating those communications, which are
not contained within the record before this court. Hughes “should, therefore, raise this argument
in a collateral attack on his conviction.” United States v. Benson, 127 F. App’x 808, 811 (6th Cir.
2005).
III
For the above reasons, we AFFIRM Hughes’s sentence.
2